In Defence of Afzal Guru

[(This article reached us on February 1, 2013. But it could not be used in the last (February 9) issue of Mainstream due to space constraints. We are now using it following Afzal Guru’s execution (on February 9) due to the abiding relevance of its contents.)]

by Nirupam Hazra

After the execution of Ajmal Amir Kasab, the demand for hanging Parliament attacker Afzal Guru gets louder. The 11th anniversary of the Parliament attack in December gave fresh impetus to this demand which insisted that hanging the attacker is the only way to pay tribute to the sacrifice of the martyrs. But in this article I will argue why it is not by hanging Guru, but by giving him a fresh and fair trial, the country can protect its democratic values and pay proper tribute to its martyrs.

Disclaimer: This article in no way questions the sincerity or belittles the sacrifice of the security personnel who laid their life defending the Parliament, nor is it meant to glorify the suffering of the alleged accused condemned to death. The sole purpose of the article is to examine why it would be dangerous for Indian democracy and the judiciary to hang Afzal Guru.

The hanging of Ajmal Kasab, formally brings down the curtain over one of the country’s deadliest and most diabolic terror attacks, although the real masterminds are still at large. Justice is done to a nation of a billion by hanging a foot soldier of terror, who was destined to doom, but unfortunately survived. Now, the demand for ‘justice’ of another audacious terror attack turns shriller, as the mercy plea of the alleged Parliament attacker, Afzal Guru, has been pending for years. The nation knows that Afzal Guru was one of the key conspirators of the attack on Parliament in 2001 and wants his mercy plea, which has been pending since 2006, to be rejected without any further delay to do ‘justice’ to the nation. Even the Supreme Court, which awarded Afzal the capital punishment, had observed that “the incident (attack on Parliament), which resulted in heavy casualties, has shaken the entire nation and the collective conscience of the society will be satisfied if the capital punishment is awarded to the offender.” Yes, the collective conscience may be satisfied with the ‘killing’ of Afzal Guru, but the altar of democracy will be tainted with blood.

Many of us are not aware of the intricacies of the Afzal Guru case and the nitty-gritty of the trial. The nation knows what is served and fed as truth by the mainstream media. Therefore we know Afzal Guru was a conspirator of the Parliament attack, but we do not know which terror group he was associated with, we know that S.A.R Geelani had no role to play in this attack, but we do not know how he led to the key conspirator Afzal Guru. This article will discuss and defend the surrendered militant who ended up being a ‘conspirator’ (or rather a victim of conspiracy) of one of the most audacious and mysterious terror attacks in the country.

Who is Afzal Guru?

Afzal Guru is a surrendered militant who joined the JKLF (Jammu and Kashmir Liberation Front) in the 1990s with a dream of free Kashmir. But soon he returned to the mainstream society and surrendered himself to the BSF in 1993. Since then he has been kept under close watch of the Special Task Force (STF) and worked with the STF. At the STF camp he met one Tariq, who claimed to work with the STF. Tariq introduced Afzal to one Mohammad and instructed him to take Mohammad to Delhi. Afzal took Mohammad to Delhi and helped him buy a second-hand Ambassador. Later Mohammad was found dead in the Parliament attack with that white second-hand Ambassador. Two days after the attack, Delhi University teacher S.A.R. Geelani was arrested. Geelani’s arrest led to the arrest of Afzal, who was subsequently convicted for the attack and sentenced to death.

Parody of Justice

But Afzal’s trial and conviction were a parody of justice and it would be a mockery of Indian democracy if Afzal is hanged. Afzal’s hanging would inflict more damage to the nation and fzal’s hanging would inflict more damage to the nation and its democratic foundation than the actual attack on the Parliament did. First of all, it would put a permanent blot on the democratic credentials of the country. The attack on the Parliament was literally an attack on the sovereignty of the country, an attack on the very epitome of democracy. But the attempt was aborted by the brave soldiers of our country. The security personnel laid down their life to defend the highest pedestal of democracy in the country. But hanging Afzal Guru would tantamount to an attempt to destroy this pedestal. It may be true that Afzal was not completely innocent and but at the same time it must be acknow-ledged that he did not deserve the death sentence he had been given to quench the bloodthirsty and retributive ‘collective conscience’ of the society. It is clear from the verdict that the death sentence was meant to ‘satisfy the collective conscience of the society’ or, in other words, Afzal has been made into a scapegoat and his life offered to satiate the retributive zeal of the nation.

It would be marked as a moment of shame for the Indian judiciary if Afzal is hanged. Afzal’s case was a travesty of justice in every sense of the term. Though every alleged criminal, whatever the nature of the crime may be, has a right to defend in court, Afzal did not get that opportunity. Another alleged accused, Delhi University lecturer S.A.R. Geelani, was defended and guided by eminent lawyers like Ram Jethmalani, Nandita Haskar and other legal luminaries. But in Afzal’s case, from the very beginning of the trial no one was willing to defend him and his family could not afford the services of the top criminal lawyers of the country. So, the court appointed a lawyer on his behalf. The first lawyer appointed by the court never appeared, while the second one worked more towards incriminating him rather than defending him. Afzal himself gave a list of four lawyers whom he wanted to defend him in the court, but none of them was willing to come forward in his defence. Finally the court appointed Neeraj Bansal as amicus curiae to start the trial. But within a few days, Bansal expressed his willingness to withdraw from the case and Afzal expressed his lack of confidence on his lawyer. But the court did not grant Bansal’s plea for withdrawal. In this way the whole trial was conducted. Virtually, Afzal did not get any chance to defend him in the court. In his plea to the President, Afzal wrote about the limited opportunity he was given to represent himself in the court. So, he was condemned to death without being given a fair chance to defend himself.

The miscarriage of justice was also evident in the way the whole trial was conducted. Afzal was awarded capital punishment only on the basis of circumstantial evidence and confession made under Section 313 of Criminal Procedure Court. There was no strong incontrovertible evidence and corroborative proof against Afzal. But there were instances where the court found that the police and investigating agency had doctored or fabricated crucial evidence. There were glaring discrepancies in the time and place of Afzal’s arrest and the seizure memo. The High Court noted that there was ‘material contra-diction’ in the story of the police. The High Court also said in its judgment that ‘the time of arrest of the accused persons has been seriously dented’. Though the court found the fabrication of documents and forgery in memos as a ‘disturbing feature’, it chose to dismiss the discrepancies without seeking any further explanation and investigation.

The sentence of the Supreme Court was disproportionately harsh on Afzal Guru. The Supreme Court’s five-judge Constitution Bench’s judgment in Bachan Singh v State of Punjab (1980) is the source of contemporary death penalty jurisprudence in India. It limited the death penalty to the rarest of rare crimes, and laid down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. But in the case of Afzal Guru the Supreme Court decided to hang him only to satisfy the collective conscience of the society. So, instead of adopting the reformatory or deterrent approach, the verdict was guided by the retributive principle of punishment. The sentence that was given to Afzal was not based on incontrovertible evidence and was therefore disproportionately harsh and retributive in nature. He had been sentenced to death for murder (Section 302, IPC), waging war against the state (Section 121 and 121A) and criminal conspiracy (Section 120A & B). But, what is interesting is that Afzal Guru was tried under the POTA (Prevention of Terrorism Act), which makes a clear distinction between committing a terrorist act (punishable by death) and being part of the conspiracy of the act (penalty—life imprisonment), but he was sentenced under the IPC.

So, the Afzal Guru case is a mockery of justice. The alleged main accused, S.A.R. Geelani, was acquitted by the Supreme Court, but the person he allegedly led to was sentenced to death. After his acquittal, S.A.R. Geelani himself publicly said that Afzal Guru did not deserve the death sentence.

Shoddy Probe

The hanging of Afzal would also set a dangerous precedent for terror investigations in the country. It would be the vindication of the shoddy probe characterised by falsification and fabrication and some unusual expedition. The comprehensive probe was completed in a record seventeen days. But the investigating team flagrantly flouted the standard procedure of investigation. The accused was made to confess his crime in front of the national media. Afzal confessed his ‘crime’ on camera, but when he (Afzal) admitted before the media that Geelani was innocent, he was shouted at and silenced by the investigating officer, Rajbir Singh. The reporter, Shams Tahir Khan of the Hindi news channel Aaj Tak, told the court that Rajbir Singh shouted at Afzal and requested him not to telecast that part in the programme.

Both the High Court and Supreme Court set aside Afzal’s confession citing ‘lapses and violations of procedural safeguards’. There were other glaring discrepancies in the case. The message to look out for Afzal was communicated to the Srinagar Police before Geelani was arrested, though it was Geelani’s arrest which led the police to Afzal. Even the arrest of S.A.R. Geelani, who was taken into custody on December 15, was made two days before the police got the call record details of his mobile, which linked Geelani to the site of the crime. But the court gave the prosecution benefit of doubt and attributed the inconsistency to ‘typoghraphical error’. The court did not pay much attention to these inconsistencies; probably considering the ‘seriousness’ of the case. The court did not even admonish or reprimand the police for their illegal practice. This would only embolden and encourage the investigating agencies to resort to such practices, especially while dealing with terror-related cases.

It has now already become a common practice in India to hold the accused of terror-cases guilty until proven innocent. Recently the Delhi High Court acquitted two alleged accused (of the 1996 bomb blast) who were sentenced to death and commuted the death sentence of the third accused into life imprisonment.

Impact in Kashmir

The hanging of Afzal will also have a negative political repercussion, especially in the politics of the Kashmir Valley, the place Afzal belongs to. Afzal’s hanging will trigger a fresh episode of protests and unrest in the Valley. Apart from the initial protests and demonstrations, it would also have a far-reaching impact. The separatist groups will use this opportunity with renewed energy to make quick inroads in Kashmir’s politics. Besides, Afzal’s hanging would inflict another blow of injustice and ill-treatment on the brutalised history of the Kashmiri people. It would only increase the trust-deficit and shake the faith of Kashmiri people in democracy and the judiciary.

It must be remembered that Afzal himself was part of a militant group fighting for free Kashmir. He returned disillusioned and relinquished violence. But today, even after shunning violence, he has been made a victim of injustice. By hanging Afzal, the last chance to undo the injustice would be lost. Death will make Afzal an unwilling martyr and his story will become a parable of injustice in Kashmir.
Another reason for not hanging Afzal is that Afzal’s execution will draw the curtain over the Parliament attack case. With the death of Afzal Guru many uncomfortable questions regarding the case will also die unresolved. The nation will never get to know who the real culprits of this attack were, why the masterminds of this high-profile attack chose a renegade, who was under the regular watch of the police, to carry out the attack, why S.A.R. Geelani believes Afzal does not deserve the death sentence and many other questions.

Only a fresh and fair probe can throw light on these unresolved questions. So, it is not by hanging Afzal Guru, but by giving him a fair trial, can we preserve the sanctity of our democracy and restore the credibility of our judiciary. Otherwise the sacrifice of the martyrs would go in vain.

References

 

1. December 13: A Reader—The Strange Case of the Attack on the Indian Parliament, Penguin Books, New Delhi; 2006.

2. December 13: Terror Over Democracy, Mukherjee, Nirmalangshu; Promilla & Co. Publishers, New Delhi; 2005.

The author is a Post-Graduate scholar, Department of Social Work, University of Delhi.